B-173718, OCT 20, 1971

B-173718: Oct 20, 1971

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GAO HAS HELD THAT AN ATTEMPTED "BUY IN" DOES NOT AFFORD A BASIS FOR REJECTION OF AN OFFER SINCE THE REGULATION PROVIDES THAT THE CONTRACTING OFFICER SHOULD ASSURE THAT AMOUNTS EXCLUDED FROM THE CONTRACT PRICE ARE NOT RECOUPED IN THE PRICING OF CHANGE ORDERS OR IN FOLLOW-ON CONTRACTS. PROTESTANT'S CONTENTION THAT MINE SAFETY'S BID WAS SO LOW AS TO IMPLY A MISTAKE IN PRICING APPEARS TO BE WITHOUT MERIT SINCE THE BID HAS BEEN VERIFIED BY THE BIDDER. INC.: REFERENCE IS MADE TO THE LETTER RECEIVED FROM YOU ON JULY 29. ONLY TWO PROPOSALS WERE RECEIVED UNDER THE RFP. THE PROPOSALS WERE EVALUATED AND AWARD WAS MADE TO MINE SAFETY APPLIANCES COMPANY. YOU PROTEST THAT THE PRICE OFFERED BY THE MINE SAFETY APPLIANCES COMPANY WAS SO SUBSTANTIALLY BELOW THAT OF YOUR FIRM THAT IT CAN BE INFERRED THAT MINE SAFETY EITHER "BID-IN" OR MADE A MISTAKE IN PRICING.

B-173718, OCT 20, 1971

BID PROTEST - "BIDDING IN" - IMPLIED MISTAKE IN BID DENIAL OF PROTEST AGAINST THE AWARD OF A CONTRACT TO THE MINE SAFETY APPLIANCES COMPANY UNDER A DEPARTMENT OF LABOR RFP ISSUED FOR AIR SAMPLING PUMPS FOR THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION. WHILE ASPR 1-311 DOES NOT APPLY TO THE LABOR DEPARTMENT, ITS IMPACT HAS BEEN CONSIDERED. GAO HAS HELD THAT AN ATTEMPTED "BUY IN" DOES NOT AFFORD A BASIS FOR REJECTION OF AN OFFER SINCE THE REGULATION PROVIDES THAT THE CONTRACTING OFFICER SHOULD ASSURE THAT AMOUNTS EXCLUDED FROM THE CONTRACT PRICE ARE NOT RECOUPED IN THE PRICING OF CHANGE ORDERS OR IN FOLLOW-ON CONTRACTS. FURTHER, PROTESTANT'S CONTENTION THAT MINE SAFETY'S BID WAS SO LOW AS TO IMPLY A MISTAKE IN PRICING APPEARS TO BE WITHOUT MERIT SINCE THE BID HAS BEEN VERIFIED BY THE BIDDER.

TO NATIONAL ENVIRONMENTAL INSTRUMENTS, INC.:

REFERENCE IS MADE TO THE LETTER RECEIVED FROM YOU ON JULY 29, 1971, PROTESTING THE AWARD OF A CONTRACT TO THE MINE SAFETY APPLIANCES COMPANY UNDER DEPARTMENT OF LABOR REQUEST FOR PROPOSALS (RFP) NO. L/A 71-54 FOR AIR SAMPLING PUMPS FOR THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION.

ONLY TWO PROPOSALS WERE RECEIVED UNDER THE RFP. YOUR FIRM SUBMITTED A PROPOSAL IN THE TOTAL AMOUNT OF $65,812.50 AND THE MINE SAFETY APPLIANCES COMPANY SUBMITTED A PROPOSAL IN THE AMOUNT OF $52,582.50. THE PROPOSALS WERE EVALUATED AND AWARD WAS MADE TO MINE SAFETY APPLIANCES COMPANY.

YOU PROTEST THAT THE PRICE OFFERED BY THE MINE SAFETY APPLIANCES COMPANY WAS SO SUBSTANTIALLY BELOW THAT OF YOUR FIRM THAT IT CAN BE INFERRED THAT MINE SAFETY EITHER "BID-IN" OR MADE A MISTAKE IN PRICING. THEREFORE, YOU STATE THAT THE BEST INTEREST OF THE GOVERNMENT WOULD NOT BE SERVED BY AN AWARD TO MINE SAFETY AND YOU STATE THAT YOUR FIRM RELIES ON THE PROVISIONS SET OUT IN PARAGRAPH 1-311 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WHICH ARE CONCERNED WITH "BUYING IN" PRACTICES. WHILE ASPR 1-311 DOES NOT APPLY TO THE DEPARTMENT OF LABOR, WE HAVE CONSIDERED THE IMPACT OF THIS REGULATION. WE HAVE HELD THAT AN ATTEMPTED "BUY IN" DOES NOT AFFORD A BASIS FOR REJECTION OF AN OFFER, SINCE THE REGULATION PROVIDES THAT THE CONTRACTING OFFICER SHOULD ASSURE HIMSELF THAT AMOUNTS EXCLUDED FROM THE CONTRACT PRICE ARE NOT RECOUPED IN THE PRICING OF CHANGE ORDERS OR IN FOLLOW-ON CONTRACTS SUBJECT TO COST ANALYSIS. SEE B-171609, MAY 12, 1971, 50 COMP. GEN. , AND CASES CITED THEREIN. WE FEEL THAT THE FOREGOING ADEQUATELY ANSWERS YOUR FIRST POINT OF PROTEST.

WITH REGARD TO YOUR CONTENTION THAT MINE SAFETY MAY HAVE MADE A MISTAKE IN ITS OFFERED PRICE, WE ARE ADVISED THAT MINE SAFETY HAS VERIFIED ITS PRICE TO THE PROCUREMENT ACTIVITY.

IN VIEW OF THE FOREGOING, WE FIND NO LEGAL BASIS TO QUESTION THE AWARD MADE TO THE MINE SAFETY APPLIANCES COMPANY.

ACCORDINGLY, THE PROTEST IS DENIED.